Colton v. Anderson

• Decision Date: 08 July 2021
• Docket Number: No. 36222-1-III,36222-1-III
• Citation: 491 P.3d 189
• Court: Washington Court of Appeals
• Parties: Colton and Cheryl BEHR, Appellants, v. Dr. Christopher G. ANDERSON, Dr. Timothy W. Powers, Leann G. Bach, Pac, Dr. Patrick S. Lynch, Jr., Northwest Orthopedic Specialists, and Deaconess Hospital, Respondents.

491 P.3d 189

Colton and Cheryl BEHR, Appellants,

v.Dr. Christopher G. ANDERSON, Dr. Timothy W. Powers, Leann G. Bach, Pac, Dr. Patrick S. Lynch, Jr., Northwest Orthopedic Specialists, and Deaconess Hospital, Respondents.

No. 36222-1-III

Court of Appeals of Washington, Division 3.

FILED JULY 8, 2021

Craig A. Mason, Mason Law, 1707 W Broadway Ave., Spokane, WA, 99201-1817, for Appellants.

James B. King, Evans, Christopher Joseph Kerley, Craven & Lackie, P.S., 818 W Riverside Ave. Ste. 250, Spokane, WA, 99201-0994, Megan Murphy, Law Offices of Megan K. Murphy, P.O. Box 2356, Yakima, WA, 98907-2356, Joel Patrick Hazel, Witherspoon Kelley Davenport Toole, 608 Northwest Blvd. Ste. 300, Coeur D Alene, ID, 83814-2174, Matthew William Daley, Witherspoon, Kelley, Davenport & Toole, 422 W Riverside Ave. Ste. 1100, Spokane, WA, 99201-0300, for Respondents.

OPINION PUBLISHED IN PART

Siddoway, A.C.J.

¶ 1 After fracturing his tibia, Colton Behr underwent surgery at Deaconess Hospital in Spokane. Postsurgery, he experienced compartment syndrome, an unusual but foreseeable complication. By the time it was recognized, the tissue necrosis was so extensive that most of the muscle of the anterior compartment of his leg had to be removed.

¶ 2 Mr. Behr and his wife sued the hospital, Northwest Orthopedic Specialists, and four Northwest Orthopedic employees, alleging medical malpractice in Mr. Behr's postoperative care. Their claims against two of Northwest Orthopedic's surgeons were dismissed on summary judgment.

¶ 3 At trial, the Behrs’ claim against Deaconess and its claim against Northwest Orthopedic for alleged malpractice by its physician assistant (PA) were dismissed as a matter of law at the close of the Behrs’ case. Their remaining claim against Northwest Orthopedic, for the alleged malpractice of Dr. Christopher Anderson, resulted in a defense verdict. The Behrs challenge all the dismissals as well as discovery, evidentiary, instructional, and procedural rulings.

¶ 4 In the published portion of this opinion, we hold first, that the trial court misapplied the "sham affidavit," or " Marshall "¹ rule, when it refused to consider an expert's declaration filed in opposition to the two surgeons’ motions for summary judgment. We also conclude that the trial court abused its discretion when it sustained objections to an orthopedic physician's testimony to the standard of care owed by a physician assistant and, on that basis, granted partial judgment as a matter of law in favor of Northwest Orthopedic.

¶ 5 In the unpublished portion of the opinion, we reject the Behrs’ challenges to judgment as a matter of law in favor of the hospital and the jury's verdict in favor of Northwest Orthopedic on the narrowed claim alleging medical negligence by Dr. Anderson.

¶ 6 We reverse the summary judgment dismissal of claims against two orthopedic surgeons and reverse dismissal of the claim against Northwest Orthopedic that was predicated on its physician assistant's alleged acts and omissions. The case is remanded for further proceedings.

FACTS

¶ 7 Compartment syndrome occurs when some condition causes a compartment in the body to expand or swell, creating pressure that can cut off blood supply leading to destruction of the contents (muscle and nerve) in the compartment. When suspected, it is treated by immediately performing a fasciotomy, which is an incision that relieves the pressure. Symptoms that compartment syndrome is occurring include pain out of proportion to the injury/surgery, paresthesia (tingling or burning), swelling, turgor (tenseness), and pulselessness. If compartment syndrome is suspected, a needle attached to a pressure monitor can be used to confirm the diagnosis.

¶ 8 The following facts leading up to the fasciotomy performed to address Colton Behr's compartment syndrome, some disputed, had come to light by the time of the trial below. As explained when we turn to the procedural history, not all were permitted to be presented at trial.

¶ 9 Thirty-nine-year-old Colton Behr injured his left leg playing basketball in Priest Lake, Idaho, on Wednesday, December 8, 2010. He drove himself to the emergency room at Deaconess Hospital in Spokane, where emergency room personnel diagnosed him with a left tibial plateau fracture. He was admitted to the hospital at around 10:00 p.m. Patrick Lynch, an employee of Northwest Orthopedic and the on-call orthopedic surgeon, examined Mr. Behr, confirmed the diagnosis, and recommended surgery.

¶ 10 Dr. Timothy Powers, one of Dr. Lynch's colleagues at Northwest Orthopedic, performed the surgery late in the day on Thursday, December 9. He saw Mr. Behr after the surgery, on Thursday night, and it appeared Mr. Behr was doing well.

¶ 11 There is conflicting evidence whether Mr. Behr experienced pain that was out of proportion to his injury and surgery beginning on Friday, December 10. Mr. Behr, a friend who visited him in the hospital, and Mr. Behr's wife Cheryl, testified during proceedings below that he was observably in pain and uncharacteristically anxious and irritable, from shortly after the surgery until relief was delivered by the fasciotomy. In addition to their testimony, the Behrs offered as evidence medical record entries that he frequently complained of pain, he was anxious (and was treated for anxiety) because he thought there was something wrong, and he questioned whether his nurses and Northwest Orthopedic's physician assistants knew what they were doing. He asked multiple times to be seen by a doctor. The Behrs also pointed to evidence of the amount of pain medication he was given.

¶ 12 In support of their position that Mr. Behr was not experiencing disproportionate pain, the defendant medical providers pointed to the fact that Deaconess nursing staff and Northwest Orthopedic providers regularly asked Mr. Behr to rate his level of pain on a 1-to-10 scale and he never rated it above 6. They argue that he responded to the pain medication being administered, as reflected in medical chart notes that reflect him reporting pain levels as low as 2 and that he was comfortable. Defense providers and other experts testified that patients undergoing surgery for a long bone fracture typically experience extreme pain.

¶ 13 Turning from evidence of Mr. Behr's pain history to other postsurgical events, it is undisputed that after being seen postoperatively by Dr. Powers, Mr. Behr's next visit by a Northwest Orthopedic employee was when he was seen sometime before 9:30 the following morning (Friday) by Mark Buescher, a PA.² PA Buescher noted on the medical chart that Mr. Behr was neurovascularly intact and able to wiggle his toes.

¶ 14 Late in the morning on Friday, a Deaconess physical therapist (PT), Ruth Benage, spent time working with Mr. Behr. Mr. Behr needed a physical therapist's clearance before he could be discharged. PT Benage's notes to the chart state, "Of note, significant edema" in Mr. Behr's left foot. Report of Proceedings (RP) at 506. She further noted "dec[reased] sensation" and "no active [dorsiflexion³ ] noted or toe movements." Clerk's Papers (CP) at 288 (capitalization omitted).

Her note states she had discussed Mr. Behr's foot status "with RN^{[4 ]} Jennifer [Lail] and I will call Dr. Lynch regarding status." Id. (some capitalization omitted). She concluded her note with her plan, including "call Dr. Lynch to make him aware of l[eft] foot status with dec[reased] active movement and dec[reased] sensation/edema." Id. (some capitalization omitted).

¶ 15 Northwest Orthopedic records reveal that PT Benage called its office at 12:55 p.m. that day. She left a message that its employee, Deneen Tate, took down as follows:

Ruth from Deaconess PT called to report that Colten [sic] is unable to perform any active movement of his left foot. He has lots of edema and decreased sensation in that foot.

CP at 3711. Ms. Tate forwarded the message via e-mail to Dr. Lynch. Dr. Lynch believed it was misdirected to him, and forwarded it to Dr. Powers. According to Dr. Lynch, he would "[t]ypically just pass [a misdirected message] on to the proper person" without looking at its contents. RP at 564-65. Both Dr. Lynch and Dr. Powers deny having read the note and neither acted on it.

¶ 16 Mr. Behr was next seen by a Northwest Orthopedic employee the following day, Saturday, December 11, when PA Leann Bach handled rounds at Deaconess. She was not aware of the phone message left by PT Benage the day before. She arrived at Mr. Behr's room at 10:45 a.m. She could not recall at the time of trial whether she reviewed the notes of PT Benage's evaluation.

¶ 17 PA Bach noted that Mr. Behr "reports persistent pain" and that "nursing reports patient has had 16 Norco⁵ in past 24 hrs." CP at 2657. On removing the dressing from his knee, she observed edema around his kneecap. She suspected that hemarthrosis (blood in the joint with edema) might be the source of his pain. After speaking with and obtaining approval from Dr. Anderson, the Northwest Orthopedic surgeon on call on Saturday, December 11, she used a large-bore needle in two attempts to aspirate Mr. Behr's parapatellar space. The attempts were unsuccessful. They were quite painful, according to Mr. Behr. PA Bach then fitted Mr. Behr with a polar ice machine.

¶ 18 Kristy Waller, the charge nurse on the Deaconess orthopedic floor became involved in Mr. Behr's care on Saturday, after nurse Lail felt Mr. Behr treated her "rude[ly] and condescending[ly] ... all morning." CP at 2834. Limited practice nurse (LPN) Lail's notes indicate that she assisted PA Bach with the attempted aspiration and that the lack of blood return "made [patient] very upset and demanded to see a doctor instead of PA again." CP at 2834.

¶ 19 RN Waller assigned a new nurse to Mr. Behr, and assured Mr. Behr she would call Dr. Anderson, which she did. Dr. Anderson visited Mr. Behr at 3:00 p.m. Saturday afternoon. Ms. Behr contends that Dr. Anderson's visit to her husband lasted no more than 10 minutes and that he...